The fact that an enterprise agreement may not expressly authorize an employer to direct an employee to carry out higher duties for which the employee is qualified to undertake does not support the contention that the employee s has a workplace right to refuse to do so.
“This ground assumes the correctness of the primary judge’s construction of cl 8.4. If the Company had no right to require the upgrade (because of a lack of authority sourced in the enterprise agreement) does that necessarily mean, as the reflex of that, that the employee had the workplace right under the Fair Work Act 1995 (Cth) to refuse the direction?
All I wish to say is that I would not necessarily see as the logical or legal consequence of a lack of authority in the enterprise agreement in the employer to require an employee to do something that there is a right derived from the Fair Work Act to resist that requirement. For the employer to require such an action of the employee and to dismiss the employee on refusal to do it may well be wrongful termination; non constat that the employer’s lack of authority leads to a workplace right under the Fair Work Act.”
Qube Ports Pty Ltd v McMaster (2016) FCAFC 123 delivered 9 September 2016 per ALLSOP CJ, JESSUP AND BROMBERG JJ